What types of divorce are there?
There are two types - Contested and Uncontested. A contested divorce means that the parties cannot agree about the issues, i.e. property, assets, debts, children, support etc. It resembles a standard lawsuit with a trial before a judge. However, these issues may be resolved at mediation. For a divorce to be uncontested there must not be any children under the age of 18 and there is an agreement about all of the other issues..
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What is mediation?
In some states, mediation is a part of the divorce proceedings for spouses who cannot agree about the terms of the divorce. A mediator is used in place of a judge to resolve issues such as child custody, support, dividing assets and debts etc. A mediator may or may not be an attorney but must be certified to mediate. Both spouses and their attorneys attend mediation to discuss the issues before them and try to work out an agreement that is acceptable to both parties. If the parties reach an agreement it is drafted and signed by the parties and their attorneys.
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How long does a divorce take?
That depends on how complex or simple the case. For example, if it is uncontested it could take a minimum of 20 days. If it is contested it could take months or years. The more complex your case is, the longer it is going to take to resolve.
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Must I show fault on behalf of my spouse so that I may be granted a divorce?
That depends on the state where you live. If you live in a fault divorce state, the common grounds for a fault divorce are adultery, bigamy, cruelty, desertion, incest and insanity. Florida is a no fault divorce state meaning a divorce will be granted without proof of fault if the marriage is irretrievably broken or there is mental incapacity of one of the parties.
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What about child custody?
In Florida, it is most common that one parent is the primary residential parent meaning this is where the child(ren) will live and the other parent has reasonable, liberal visitation (if no abuse). Both parents have a shared parental responsibility which means that important decisions about the child(ren) are decided together. Decisions such as which school the child(ren) will attend, medical treatment, religion etc. Whether the issue is where the child(ren) will live, which school to select, medical treatment, the most important factor is the best interest of the child(ren).
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How is child support decided?
Both parents are responsible for the support of their children. Florida has child support guidelines. Child support is calculated by determining the net monthly income of both parents, number of children, daycare expenses if any and insurance for the children. Each parent's percentage share of the child support is determined by dividing each parent's net monthly income by the combined net income. For example: Parent 1 earns a net income of $12,000.00 annually and Parent 2 earns a net income of $24,000.00 annually. Assume for simplicity sake that there is no day care expense and no insurance. P1's net monthly income is $1,000 and P2's net monthly income is $2,000. The combined monthly net income is $3,000. P1's percentage of responsibility is 1,000/3,000 = 33% while P2's percentage is 2,000/3,000 = 67%. Assume that there is one child, then the court would look at the guideline under one child, combined net income of $3,000 and find $644 due for child support. P1 is responsible for 33% of $644 while P2 is responsible for 67% of $644 which is $212.52 and $431.48, respectively.
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Is it possible to have the child support increased or decreased?
Yes, this is called a modification. There must be a substantial change in circumstances to warrant an increase or decrease such as a higher salary or involuntary employment. It must be a substantial change.
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What about alimony?
Either party may be granted alimony. Alimony is either Rehabilitative Alimony or permanent in nature. The court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony. The court considers the following findings of fact to determine support or denial of alimony: 1. The term of the marriage; 2. The financial resources of each party; 3. The age and the physical and emotional condition of each party; 4. Standard of living established during the marriage; 5. The time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment and become self supporting. For example, if you are married two years it is very unlikely that you will be awarded permanent alimony. However, you may be entitled to rehabilitative alimony. This is temporary and is awarded based on the above factors and a plan must be presented to show that the party asking for rehabilitative alimony is going to receive training at a job or go to school to enable them to become self supporting. There is no set guideline for alimony as there is for child support. It is a case by case basis.
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How does the court decide how to divide the assets?
In Florida , the proceeding for
a dissolution marriage includes the distribution of marital assets
and liabilities between the parties. The court begins with the premise
that these will be divided equally but if there is justification for an unequal
distribution then it is considered equitable and not necessarily equal. Some
of the factors that the court considers to determine if the assets and liabilities
are equal are as follows: 1. Duration of the marriage; 2. Economic circumstances
of the parties; 3. Contribution to the marriage by each spouse, i.e. care
of children, services as homemaker; 4. Whether either party interrupted their
career or educational opportunities; 5. The desirability of retaining any
asset, for ex. in a corporation or professional practice; 6. The contribution
of each spouse to the acquisition, enhancement, and production of income
whether the asset is marital or non marital; 7. The desirability of retaining
the marital home; 8. The intentional dissipation, waste, depletion, or destruction
of marital assets after the filing of the petition or within 2 years prior
to the filing of the petition; 9. Any other factors necessary to do equity
and justice between the parties. (Fla. Stat. Ch. 61)
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What assets and liabilities are considered Marital and Non marital?
Marital assets and liabilities include:
1. Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them; 2. The enhancement in value and appreciation of non marital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both; 3. Inter spousal gifts during the marriage; 4. All vested and non vested benefits, rights, and funds accrued during the marriage in retirement, pension, profit sharing, annuity, deferred compensation, and insurance plans and programs; and 5. All real property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset. If, in any case, a party makes a claim to the contrary, the burden of proof shall be on the party asserting the claim for a special equity.
Non marital assets and liabilities include:
1. Assets acquired and liabilities incurred by either party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities; 2. Assets acquired separately by either party by non inter spousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets; 3. All income derived from non marital assets during the marriage unless the income was treated, used, or relied upon by the parties as a marital asset; and 4. Assets and liabilities excluded from marital assets and liabilities by valid written agreement of the parties, and assets acquired and liabilities incurred in exchange for such assets and liabilities.
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